When Dawud Moore heard he’d been assigned bail, he felt relieved. It was January 2015, and Moore, a black man who was a 38-year-old Brooklyn resident at the time, was in an arraignment hearing on forgery charges — he had cashed a paycheck that his employer claimed was fraudulent. He maintained then and now that the company accidentally paid him twice, once in person and once by mail. The company claimed he’d forged a duplicate check.

All things considered, the $10,000 bond1 felt manageable. Moore had been arrested before, including for a drug-related conspiracy charge that put him in federal prison for nearly a decade. This time he was a little more than a year out of prison and had several months of steady work as a mason under his belt. He had a little bit of cash in his bank account, enough to pay the bondsman and make bail. Posting it would allow him to be released from jail while he awaited trial, and Moore was familiar enough with the system to know that he was much more likely to beat the case if he wasn’t locked up. “It’s funny because this is the first time in my adult life where I got a bail,” he said recently. “I was thinking, ‘I’m working, I’m out of trouble, I can pay this.’ And I know I didn’t do anything wrong,” Moore said.

But not all judges in New York City treat bail the same way. A FiveThirtyEight analysis of 105,581 cases handled by The Legal Aid Society, the largest public defender organization in New York, found that how much bail you owe — and whether you owe it at all — can depend on who hears your case the day you’re arraigned.

New York’s judges are assigned to arraignment shifts, hearing every case that comes into the court during that time. Because the assignments are random — judges hear cases solely based on when people are arrested and how busy the court is — we can identify whether defendants are being treated equally regardless of who hears their case. They are not.

In New York City, when clients of The Legal Aid Society who were charged with a misdemeanor in 2017 entered their initial arraignment, they had anywhere between a 2 and 26 percent chance of the judge setting a cash bail, depending on which judge was randomly assigned to oversee the court that day. For felonies,2 the range was even wider: anywhere between 30 and 69 percent. Those not assigned bail are likely to be released without having to pay, which means getting arrested on the wrong day can have a major consequence: You are more than twice as likely to have to pay your way to freedom. Can’t find the money? You’re stuck in jail.

Moore, who was a Legal Aid client, found a bondsman. But when the bondsman went to the court to post Moore’s bail, he had to go to the New York County Supreme Court judge now assigned to his case. (After an initial arraignment, felonies are moved to a different court system.) That judge, Charles Solomon, said the bail set by the initial judge was too low, and the amount Moore had paid the bondsman as security on his bond, a total of $1,600, wasn’t sufficient given Moore’s criminal history, according to transcripts of the court proceedings.

Moore’s lawyer protested,3 but Solomon declined to tell Moore’s lawyer what amount would be an acceptable collateral. At a subsequent hearing, he raised the bail to $25,000. Moore says his family got more money together and gave it to the bondsman, but Solomon continued to refuse it.

Judges do not comment on the details of individual cases, according to a spokesperson for the New York State Unified Court System, and Judge Solomon retired late last year. But while Moore was locked up, the court argued that Solomon’s refusal to accept the bond was not an abuse of his discretion because he made it clear that he planned to increase the bail after Moore received a felony indictment, citing relevant aspects of Moore’s criminal history.

Moore says he spent 10 months locked up, most of it in the notorious jails on Rikers Island, a 400-acre island in the East River that’s home to New York City’s main jail complex.

His time on Rikers included some of the most violent months in the jail system’s history. Working in the medical unit,4 he remembers seeing other inmates come in on stretchers with stab wounds and other injuries on what felt like a daily basis. “I’m not going to say that because I spent 10 years in [federal] prison, I’m tough,” Moore said. “No, I was scared.”

Desperate to get off the island, Moore pleaded to a misdemeanor, a fine and time served.

Moore’s case is not typical. FiveThirtyEight spoke with several public defenders who said that while it’s not unheard of, it is rare for a judge in New York City to demand additional collateral before accepting a bail posted by a bondsman. But it does highlight a feature of the bail system in many parts of the country: Judges have wide-reaching discretion to decide how much bail a defendant must pay — discretion that judges deploy in very different ways.

Random justice

For several years, politicians on the national and local level have been wondering what to do about America’s bail system. Few are happy with it. Empirical research has suggested that it has deleterious consequences for defendants, the penal system and recidivism rates. FiveThirtyEight’s findings add another layer to previous reports about the system’s inequality.

This FiveThirtyEight analysis covers all arraignments in criminal court in New York City in 2017 that are handled by The Legal Aid Society, which represented about 60 percent of all individuals arrested in the city last year. (By nature of qualifying for a public defender, the defendants involved are people who would likely struggle to pay bail.) In our analysis, we only looked at the initial arraignment in each case (some cases have follow-up hearings, which we did not include), and we have excluded cases that were dropped or concluded on the day of first arraignment. We categorized judge decisions as one of the following: bail greater than $1, which is cases where cash bail was set; remand, which is when defendants are held without bail; or released without bail or bail of $0, which groups together cases where people were assigned non-cash forms of bail, received supervised release, or were released on their own recognizance. The data did not allow for us to do any demographic analysis, so we don’t know if bail rates differ depending on, for example, the race of the defendant.

Where a person is arraigned also matters. New York City has five boroughs, each with its own criminal court and a unique culture when it comes to bail setting, according to people who work in the court system. Moore’s case was filed in Manhattan because that’s where the construction company reported the crime; 58 percent of felonies there were assigned bail in 2017,6 according to FiveThirtyEight’s analysis. In Brooklyn, where Moore lives, 47 percent of felony cases were assigned money bail.7

FiveThirtyEight requested interviews with the New York State Unified Court System and the judges who appear in the data, and emailed a list of questions about bail-setting practices. In response, the courts issued a short statement:

“The setting of bail or bond in New York state is solely up to the presiding judge on the particular case. The particular type and amount of bail, or whether bail is appropriate at all, for the defendant, is advocated by both the prosecution and defense bar with the final determination coming from the presiding judge.

The New York State legislature promulgates the laws and that would include any changes to New York’s bail statutes.”

What role does bail serve?

Bail was created as a way to get people out of jail while they await trial by providing an incentive to make sure they show up for subsequent court dates. But today, jails around the country are filled with some 450,000 people who are being held pretrial. And just a few days in jail can have significant consequences.

“There’s a real opportunity for judges … to look at their bail-setting practice and be able to reduce the pretrial population with the tools they already have at their disposal.”

But despite this momentum toward reducing the use of bail, many prosecutors continue to ask judges to set bail, and many judges continue to agree.

“Why in the world would we keep people in [jail], in these inhumane conditions that exist in many of our jails, when there’s no reason, when those people should be home with their families and their communities,” said Judge Jonathan Lippman, former chief judge for the state of New York and chair of an independent commission on criminal justice and jail reform in NYC.

Lippman and the commission have advocated to end cash bail entirely, saying there is no evidence that it is more effective than other forms of bail at increasing the likelihood that people will return to court for hearings.

He would, however, like judges to be allowed to consider public safety when they are deciding what to do with a defendant awaiting trial, which is not currently allowed in New York. Lippman is sure that some judges in some cases set cash bail because they are worried about the crimes a person may commit if they are released before their trial. “It is a fiction that judges don’t consider public safety,” he said. But, like many critics of cash bail, he believes that the current system frequently penalizes the poor and is particularly harmful to communities of color.

In 2016, just 15 percent of bails were paid at arraignment for non-felony cases. For felony cases, it was 8.8 percent.

In Moore’s case, the bail decision by the second judge put Moore in jail for the better part of a year, which in turn damaged his relationship with his family and friends, relationships he’d been trying to repair since he’d been released from federal prison. “Everyone is like, ‘It must be serious if the judge isn’t letting you out.’”

New York’s bail problem

New York City has been searching for an answer to its bail problem for years. In 2014, The New Yorker reported on the case of Kalief Browder, a teenager who was accused of stealing a backpack and spent three years on Rikers as a result, much of it in solitary confinement. His case was later dropped, and in 2015 he killed himself.

In response, the New York City Council Speaker requested an independent commission, the one chaired by Judge Lippman.

In addition to recommending that New York stop using money bail, the commission also found that Rikers is beyond redemption and recommended shutting down the jail complex altogether. In 2017, New York City Mayor Bill de Blasio said he wanted to close Rikers within 10 years. The Legal Aid Society’s data suggests that if the judges who were most likely to set bail in 2017 instead started setting bail at the median rate, the inmate population could be reduced by several thousand people — which would go a long way toward helping to close Rikers.

“There’s a real opportunity for judges … to look at their bail-setting practice and be able to reduce the pretrial population with the tools they already have at their disposal,” said Jane-Roberte Sampeur, a staff attorney with The Legal Aid Society.

All this data from New York points to one of the reasons that state and local governments are moving to limit the use of cash bail across the country. It’s been several decades since someone was held because of their inability to pay bail in Washington, D.C., for example, the defendant’s financial circumstances are taken into consideration when cash bail is set.

New York, though, hasn’t yet followed suit, despite significant efforts to move the state away from the cash bail system. The state assembly recently approved legislation that would end the use of cash bail for most misdemeanors and nonviolent felonies. But with two working days left in the state’s legislative session, the bill is not expected to be passed by the state Senate, which means it can’t become law this term. However, activists, lawmakers and public defenders say they remain hopeful that there will be legislative change next year.

In the meantime, New York City has reduced its use of cash bail. Advocates of bail reform have been encouraging judges to release more people without asking for any kind of bail, or to make more frequent use of other kinds of bail — things like unsecured bonds, which amount to a promise to return to court or pay a fine. The city also recently created a large-scale program for supervised release, which allows judges to let people out without bail, but requires that the defendants do things like check in with the court, similar in some ways to parole.

George Grasso, the supervising judge for Bronx county criminal court, was involved in creating that program. He says judges must be aware that setting bail can potentially lead to a long stay in Rikers. “We have a lot of good alternatives if we’re concerned about [a defendant’s] appearance” at later court dates, he said. He also pointed out that though there’s a lot of attention on New York City’s criminal justice system, it releases people without bail far more often than other parts of the U.S.

“What we do in New York City — in wide swaths of the country, from the defense perspective — would be nirvana,” said Grasso.

The problem is bigger than New York City

Bail-setting practices are no more consistent in upstate New York. In Erie County, where Buffalo is located and where 64 percent of people in one local jail are waiting for their trials, people charged with minor misdemeanors are routinely asked to pay bail, according to research by the Partnership for the Public Good, a community-based think tank in Buffalo. Pretrial data is hard to come by and bail data is not made publicly available, so from Nov. 2017 to Feb. 2018, the group sent court watchers to observe 240 arraignment hearings.

They found something similar to what FiveThirtyEight found in New York City: Cash bail was set in 64 percent of hearings and defendants were released in 33 percent of cases, but the frequency varied dramatically between judges. One judge set bail in 46 percent of all cases, while another set bail in 92 percent.

Bail-setting practices are inconsistent elsewhere too

Share of felony and misdemeanor arraignments where bail was set by five anonymous judges in Buffalo, New York, from Nov. 2017 to Feb. 2018

share of cases where bail was set

Judge

Misdemeanors

Felonies

1

83%

–

–

100%

–

–

2

72

–

–

90

–

–

3

55

–

–

83

–

–

4

67

–

–

77

–

–

5

42

–

–

59

–

–

Source: Partnership for the Public Good

When the Partnership for Public Good compared cases with similar backgrounds and charges, the group found that there seemed to be differences in both how often bail was set and the amount it was for depending on what judge happened to be presiding the day a person landed in court, said Andrea Ó Súilleabháin, deputy director at the organization. And the different approaches that showed up in the data were also recognizable in the courtroom. One judge regularly asked defendants about their ability to pay bail, while one judge assigned bail to a defendant (after initially approving him for a supervised release program) after scolding him for slouching in his chair. “It’s almost bail as punitive, we could see that feeling in the courtroom,” said Ó Súilleabháin.

Judge Paula Feroleto, the administrative judge for New York’s Eighth Judicial District, which covers Buffalo, agreed to an interview with FiveThirtyEight, but declined to comment on questions relating to cash bail, noting only that judges follow the law.

Ó Súilleabháin said that PPG’s interviews with judges in the Buffalo area suggest that there are cultural explanations for the heavy use of cash bail. Some judges said they fear that someone who was released would commit a violent act while awaiting trial. Others said they believe their constituents want a conservative approach. (Many judges are elected in New York state.) One judge even told PPG that judges sometimes use high bail as a way of clearing crowded court dockets, trying to force people to plead out.

If a court is really using its discretion, said Rebecca Town, a public defender in Buffalo, then judges will set bail using the method that is the least onerous for the defendant while still being robust enough to get the person to return to court. “Our courts are not using the flexibility they have,” she said, noting how rarely non-monetary forms of bail are used in Buffalo.

How far will reform go?

Even in places moving to end the use of cash bail, the conversation is usually limited to first-time offenders or people charged with misdemeanors. Reforms likely wouldn’t apply to people like Moore who are charged with felonies or already have criminal records. And even though felonies tend to be more serious crimes, it’s not uncommon for charges to be brought on questionable evidence.

Darryl Herring, a 61-year-old black man, recently moved into his first steady apartment in many years. Before finding his current home, he had fled the putrid aftermath of Hurricane Katrina for New York, the city where he grew up, then lived in a series of homeless shelters before finding himself on Rikers Island for almost two years.

In July of 2015, a female acquaintance from the shelter where he was living at the time accused him of rape. He was assigned a bail of $75,000 at arraignment, but Herring said it would have been impossible for him to pay even $100. His attorney advised he plead to a lower charge, which would likely have put him on a sex offender registry for the rest of his life. But a plea bargain was never an option as far as he was concerned. “I was 58 when they picked me up. Any sentence to me was a death sentence.”

Since his stay on Rikers, which included endless days on lockdown due to the rampant fighting among younger inmates, he says he hasn’t been able to sleep through the night. “The psychological effect is the worst part,” he said. “It really got your mind down.”

Weak discovery laws in New York meant the prosecution didn’t have to hand over its evidence until right before trial, but when Herring’s attorney and the judge finally got a look at the prosecutor’s case — 18 months after Herring’s initial arrest — he was quickly acquitted. Herring’s file is sealed, but he says that the records showed that information gathered by the police and prosecutors cast significant doubt on the accuser’s statement, and physical evidence failed to link him to the accuser.

And like that, he was released. He’d been found guilty of no crime.

“People who haven’t been through it, they gotta think it can’t be that bad.” Herring said. “But it is.”

Footnotes

Moore was assigned a bail of $7,500 cash or $10,000 bond.

Felony charges can involve multiple arraignments. Here, we are looking only at the initial arraignment after arrest, not any subsequent arraignments.

Moore’s lawyer protested on the grounds that in New York, all defendants are entitled to be assigned two ways they can make bail. The two Moore was given, all cash or a secured bond, paid for through a bondsman, are the most frequently used options. His lawyer objected that he wasn’t being allowed to use the secured bond option, which meant that in effect he was only given one way he could make bail.

An administrator at the medical clinic was one of several people who wrote letters to Judge Solomon about Moore over the course of his pretrial incarceration, attesting to his good character. “I can positively write that Mr. Moore is an excellent worker, a well-mannered person who carefully negotiates the day to day trials of living and working within a jail,” the administrator wrote.

We excluded cases involving criminal summons, desk appearance tickets, transfers or juvenile offenders, as well as cases where we could not determine whether or not a defendant was arraigned. We also include domestic violence cases that are eventually sent to domestic violence courts, as long as the first appearance in court was as a regular arraignment. Because the data only covers cases handled by The Legal Aid Society, it is a subset of all cases in New York City, but it represents the majority of all cases, and is reflective of people for whom it would likely be difficult to pay a large cash bail.

We calculated remand and bail rates for judges who had seen at least 100 qualified cases in each county. Some judges may appear in multiple counties so long as they met the threshold of 100 cases handled for each county. We also calculated each judge’s average and most common bail amounts for all cases where bail was set. We excluded cases where bail was set at $1, because this amount is generally used to reflect an accounting strategy that credits defendants for jail time served when they have multiple cases open at one time. Recent research suggests demographic factors such as race do matter in bail decisions. However, for this analysis we do not have sufficient data to account for trial outcomes, arrest rates or overall rates of criminality, and therefore cannot make conclusive statements about the role demographics plays in bail decisions.

Eight percent were remanded without bail and 33 percent were released, either on their own recognizance or through supervised release.

Three percent were remanded without bail and 47 percent were released, either on their own recognizance or through supervised release.

Anna Maria Barry-Jester reports on public health, food and culture for FiveThirtyEight. @annabarryjester